Tuesday, November 8, 2011

Public Nuisance in Virginia

A nuisance occurs when a property owner unreasonably uses his property in a manner that "substantially interferes" with the enjoyment or use of another individual's property. 

A nuisance differs from a trespass because the nuisance-creator does not physically enter onto the other property owner's land. Nuisances include loud noises that unreasonably disturb a neighbor and foul smells that do the same: neither the ruckus nor the stench physically (or bodily) enters the neighbor's property, but they nevertheless interfere with the neighbor's ability to enjoy his property.


In Virginia, most nuisances are private nuisances, which means that one landowner brings a civil claim against another landowner.  In these claims, the general public's interest is not represented by the Commonwealth attorney participating in the lawsuit.

However, there is a provision in the Code of Virginia (Section 48.1, accessible here) that enables five citizens to petition a court to bring a public nuisance claim against a property owner whose actions negatively impact a broader swath of the public.

When a petition is brought under Section 48.1, the judge summons a grand jury to investigate the complaint and, if sufficient evidence of a public nuisance is found, then the nuisance-creator may be held liable and fined up to $25,000.00.


Now comes a fascinating front-page Washington Post story about a group of church-goers in Fairfax County who have petitioned under Section 48.1. The petitioners allege that a neighboring golf range has created a public nuisance by virtue of the 2,637 golf balls (!) that have crossed onto the church's property, in some cases damaging property and injuring individuals. 

You can read Justin Jouvenal's account of the dispute here

According to Jouvenal, the range owners contend that they have (1) taken reasonable steps to prevent the golf balls from leaving their property and (2) cooperated with the church in attempting to devise mutually agreeable solutions.  Nevertheless, the grand jury concluded that there is a reasonable basis for a charge of public nuisance, and the case could head to trial in January.


If the matter does go to trial, it will be interesting to see whether a judge concludes that the 100+ foot protective netting installed by the golf range is a sufficient accomodation to defeat the claim of nuisance.